State ex rel. Stevenson Township v. Nichols

Bruce, Oh. J. This is an appeal from a judgment denying a peremptory writ of mandamus which was sought by the plaintiff and appellant to compel the defendant, as auditor of the county of Morton, to prepare and deliver to the relators the assessment book as provided by law, and the necessary blanks for the assessment by the assessor of Stevenson township, for the purpose of taxation for the year 1917 of the property within that portion of said Stevenson township located within the territorial limits of said county of Morton. It is a result of the general election of 1916, which divided Morton county by segregating a portion thereof and creating the same into the new county of Grant. The whole of the Stevenson township was originally in the county of Morton and was composed of congressional township 133 north range 83, 83 west and fractional congressional township 133 north of range 82 west. After the creation of the new county of Grant this fractional township, containing approximately nineteen sections, was located in Morton county, and the congressional township of thirty-six sections, in the new county of Grant; and the auditor of Morton county, North Dakota, defendant herein, refused to deliver to the assessor of relator township the assessment book and necessary blanks for the assessment of property within that portion of Stevenson township lying in the county of Morton for the purpose of taxation for the year 1917. This refusal was based upon the advice of the state’s attorney of Morton [6] county, who held that Stevenson township had been dissolved by the segregation of Grant county from Morton county, and that the territory now within Morton county, and which was formerly included in Stevenson township, became unorganized territory of the county of Morton and a part of the assessor’s district in said county to which the same was adjacent. The question which is presented to us for determination is not without difficulty. We are satisfied that in North Dakota a township must always be looked upon as a subdivision of a county. Abbott’s Law Dictionary. It is created by the board of county commissioners of the county in which it is located, on a petition of the voters, rather than by the independent act of the voters themselves. See § 4072 of the Compiled Laws of 1913. This being the fact, and since no means have been provided for the dissolution of a township, except by a vote of the majority of the electors residing therein (see §§ 4277 et seq., Compiled Laws of 1913), we are satisfied that it was the intention of the legislature that, once being created, the entity of a township should be preserved and should continue except where it, the legislature, chose to expressly otherwise provide. Our conclusion is that the nineteen sections in Morton county still constitute the township of Stevenson, and that the thirty-six sections in Grant county constitute unorganized territory in such new county. We are satisfied that the ultimate control in such cases is in the legislature, and that the legislature can authorize the division of townships by the creation of new counties, as it has done in the case at bar. Since, however, § 4079 of the Compiled Laws of 1913 expressly provides that, where a congressional township borders on a lake or river (as does the township in the case at bar), a civil township may be composed of a portion thereof, provided such portion contains more than eighteen sections of land and contains at least one hundred inhabitants, we are satisfied that a division of a county which divides a township and places a portion of its territory in the new county about to be created, does not destroy the entity of that portion of the township which has been left in the old county, nor does it make of it unorganized territory, provided such portion still contains 18 sections and lO'O inhabitants. In such a case all that is effected is an alteration of the territorial limits of the original township. [7] We are satisfied that a township when once created is not merely a corporate entity, but that it is subordinate to and is a part of the general system of county management and control of the county in which it is situated. No man can serve two masters, and it is out of the question that for election purposes a fractional township should be considered a political entity and for taxation purposes it should be considered unorganized territory. See Springwells v. Wayne County, 58 Mich. 240, 25 N. W. 329; Courtright v. Brooks Twp. 54 Mich. 182, 19 N. W. 945; Farley v. Boxville, 113 Minn. 203, 129 N. W. 381. In both taxation and election matters, the unit is the county, township, or precinct; and there is no provision in the statutes for two precincts in two counties, nor for the election of two assessors in so far-as townships are concerned. It is true that in the case of elections which are held in cities and in villages whose territory stretches into two counties, two or more precincts are provided for in each county. No such provision, however, is to be found in the case of townships. See §§ 950, 4211, 4019, 4081, 4146, 4144, 4114, 2125, 4212, 3934-3938, 3564, 3556, 3932 — 3941. • See also § 121 of the Constitution, which limits the right of suffrage .to those who have resided in the state one year, the county six months, and the precinct ninety days. The judgment of the District Court is reversed and the cause is remanded for further proceedings according to law. Robinson and Grace, JJ. I concur in the result.